Why Medical Malpractice Fails
Author: Samuel Metz
Medical malpractice insurance
is not a solution. It is a problem.
Many observers advocate
reform. But this system is worse than a failure. It
endangers fair compensation of medically injured patients.
It cripples all attempts to improve health care. Reform
will not work. Replacement is essential.
What do we expect of our
medical malpractice system? Two goals: We want families of
medically injured patients to receive help. And we want
physicians to learn and implement methods to reduce
Our current system does
neither. Instead of solving problems, it creates new ones:
1. Only a small fraction of
medically injured patients, less than 3%, receive any
compensation at all.1 Medically
injured patients must initiate legal proceedings to gain
any hope of compensation. Only medical injuries proven in
court to result from negligence may receive compensation.
As most medical errors are not negligent care, most
injured patients receive nothing. And as negligence is
determined by a jury of lay persons, not professionals,
unpredictably legal outcomes are common.
2. It operates with shameful
inefficiency with less than half of funds paid in
insurance ever making it to patients or families.2, 3 Workman's
Compensation, hardly a model of bureaucratic efficiency,
manages to return over 80% of collected funds to injured
3. Certain specialty
physicians find it financially untenable to practice,
leaving many areas without specialty medical care.4 Higher
insurance premiums plague these specialties not because
they are rife with negligent physicians, but because they
care for sicker patients more likely to suffer a bad
outcome regardless of care. Do we believe that
neurosurgeons pay more for insurance than pediatricians
because they are more incompetent?
4. Physicians are encouraged
to direct their practice toward improving their own legal
outcome, sometimes at the cost of patient's medical
outcome. One example: most obstetricians still use
electronic fetal monitoring despite absent evidence that
it improves neonatal outcome and disturbing evidence that
it increases maternal mortality.5
5. Finally it corrupts public
confidence in medical care as physicians and patients
become adversaries, not partners, in health care.
Given its failure to fairly
compensate patients for medical injury, does our medical
malpractice system at least improve medical care?
None of the $7 billion spent
for malpractice premiums3 nor the
$5 billion to $25 billion spent for defensive medicine6 goes
to quality improvement. Physicians divert financial
resources from patient safety to legal protection. In
Florida, which passed a law compelling physicians to
surrender their license after a third malpractice
judgment, physicians are highly motivated to rapidly
settle out of court any claim, no matter how trivial.7 Plaintiff's
attorneys are even more highly motivated to pursue any
claim, knowing that an out of court settlement may be
offered regardless of merit. All these interactions cost
money, money that cannot be spent on quality improvement.
In fact, physicians now
practice in a climate of culpability, in which avoiding
blame for a patient outcome consumes extensive social
capital. When any discovered medical error or bad outcome
can produce an adverse malpractice judgment, physicians
decline participation in practice improvement programs.8 Quality
improvement evaporates. Progress in patient care freezes
as current care dictated by malpractice judgments becomes
the immutable standard of care. Medical progress slows to
a glacial crawl.
What is to be done?
Abandon reform. Start over.
Separate our goals. Focus on compensating patients
equitably and improving our medical environment - without
making these goals mutually exclusive.9
We are not yet ready to
abandon our current medical malpractice system. Why? The
public still perceives, correctly, that our current
medical malpractice system is the only mechanism, however
erratic, to receive compensation for medical injuries. The
public also perceives, incorrectly, that our current
system is their only protection from medical errors.
We need two independent
mechanisms to address these issues before the public will
tolerate the retirement of our current system, however
First, compensate medically
injured patients regardless of negligence. If patients
need only demonstrate to an impartial board that a medical
injury produced a financial hardship, then physicians can
return to being patient advocates rather than patient
adversaries. Working models abound both in the United
States and elsewhere, too many to list here; it's simply a
matter of making the effort to determine which one to try
Second, create a medical
environment in which the detection, reporting, and
analysis of errors are welcomed by physicians because
error analysis is independent of fault finding. Our
current State medical boards, hospital quality improvement
committees, and some professional specialty organizations
can devote themselves at full power to patient safety if
physicians know that participation will be rewarded, not
punished. We can even imagine a completely new
organization, modeled on the National Transportation
Safety Board. This new organization could investigate all
medical errors with intent not of assigning blame but with
of recommending improvements in health care delivery. Such
a national review organization could produce powerful
effects on patient care only if fear of litigation did not
hamper its efforts.
We have a wealth of solutions
available to both compensate medically injured patients
and improve medical care. Once we make these solutions
work, our current medical malpractice system becomes
obsolete. Few will be sorry to see it go.
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Brennan TA, et al. Relation between malpractice claims and
adverse events due to negligence: results of the Harvard
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2. Kakalik JS, Pace NM. Costs
and compensation paid in tort litigation. R-3391-ICJ.
Santa Monica, Calif.: Institute for Civil Justice, RAND,
3. Hartwig RP, Wilkinson C.
Medical Malpractice Insurance, Insurance Information
Institute, June 2003, [link]
accessed 15 January 2007
4. Bean JR. “Current Issues
Related to Medical Liability Reform” testimony before the
House Energy and Commerce Health Subcommittee representing
the Alliance of Specialty Medicine, February 10, 2005,
(link no longer valid)
accessed 16 January 2007
5. Kripke CC. Why are we
using electronic fetal monitoring? American Family
Physician, 1999; 59:2416-18, [link]
accessed 16 January 2007
6. Rubin RJ, Mendelson DN.
How much does defensive medicine cost? J Am Health Policy
7. "Florida Passes
Three-Strikes Malpractice Law" New York Times, November
26, 2004. [link]
accessed 16 January 2007
8. Bovbjerg RR, Miller RH,
Shapiro DW. Paths to reducing medical injury: professional
liability and discipline vs. patient safety — and the need
for a third way. J Law Med Ethics 2001;29:369-80.
9. Studdert DM, Mello MM,
Brennan TA. Medical malpractice. N Engl J Med 2004;